The judgment herein was affirmed at a former day of this term. On motion for rehearing our attention has been again called to the facts, and to the alleged error in affirming the judgment, holding the case to be one based on positive testimony, *Page 500 and that the court erred in refusing to charge the law of circumstantial evidence. Upon a review of the testimony, we are of opinion the point is well taken. The former opinion was predicated upon the idea that the statement of defendant admitting the branding carried with it the idea that the branding and taking were contemporaneous acts; that is, that the branding immediately followed the taking; and that, in admitting the branding, his statement carried with it a confession of the taking. But a review of the testimony does not justify this conclusion. John Callahan, Jr., testified for the State that he was looking after the animal in question for his father, and missed it about the middle of July, and shortly thereafter he found the colt running upon its accustomed range, branded Bar;B. While he and Shirley were driving some horses, — this colt among the number, — appellant and George Fauver overtook them and made inquiry as to the horses they were driving. The colt in question became the matter of discussion, and was claimed by defendant. Callahan claimed it was the property of his father, and as being the colt of a certain black mare. Defendant said it was his, and was the colt of a brown mare with a white hind foot. Fauver testified for defendant as follows: "I heard defendant say that he branded the colt in his brand; that it belonged to a gray mare of his. This was when we were at the bunch of horses that was being driven by John Callahan and Shirley." To make the case one of positive evidence, the State had to rely upon this statement of defendant that he branded the colt. This was a cease of theft, and the branding was used as a criminative fact to connect appellant with the taking. It is necessarily true that the brand could not be placed upon the animal until it had been reduced to possession. It is a matter of inference from the statement made by defendant as to the branding as to when, how, or where the animal was reduced to possession, and how long it had been in defendant's possession before placing the brand upon it. The law applicable to the facts, as we understand, would be the same as in a case where the State relied upon possession of recently stolen property. The facts may, under such circumstances, place it in such close relation to the taking as to relieve the court of the necessity of charging upon circumstantial evidence; but, unless the evidence is so cogent as to place this beyond question, the charge on circumstantial evidence should he given. Here we can only deduce the taking from the statement of defendant that he did brand the colt. The statement does not show or disclose the manner or means by which defendant obtained possession, whether it was legal or illegal. So we believe the original opinion in this respect is erroneous. The court should have given the charge on circumstantial evidence, one being requested, refused, and bill of exceptions reserved to such refusal. Because of this error the motion for rehearing is granted, the judgment reversed and the cause remanded.
Reversed and remanded. *Page 501